Director of Public Prosecutions (WA) v Samson
[2014] WASC 199
•3 JUNE 2014
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- SAMSON [2014] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 199 | |
| Case No: | DSO:5/2014 | 19 MAY 2014 | |
| Coram: | McKECHNIE J | 3/06/14 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) ALTON JOHN SAMSON |
Catchwords: | Application for dangerous sexual offender declaration One offence of sexual offending Whether reasonable grounds for believing a declaration might be made |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 14 |
Case References: | Attorney General (Qld) v Francis [2006] QCA 324; (2006) 1 Qd R 396 DPP (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 George v Rockett (1990) 170 CLR 104 Parker v Churchill (1985) 9 FCR 316 Samson v The State of Western Australia [2011] WASCA 173 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
ALTON JOHN SAMSON
Respondent
Catchwords:
Application for dangerous sexual offender declaration - One offence of sexual offending - Whether reasonable grounds for believing a declaration might be made
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 14
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Attorney General (Qld) v Francis [2006] QCA 324; (2006) 1 Qd R 396
DPP (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
George v Rockett (1990) 170 CLR 104
Parker v Churchill (1985) 9 FCR 316
Samson v The State of Western Australia [2011] WASCA 173
- McKECHNIE J:
A late application is made
1 The respondent was serving the final stages of a sentence and was due for release on 22 May 2014. On 9 May 2014 the DPP filed an application under s 14 and s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).
2 An affidavit from Mr James Hosie, the Acting Director North, Adult Community Corrections explains the late application:
4. The Respondent is currently serving seven years imprisonment for the offence of Sexual Penetration of a Child Under 13 years. The sentence was imposed on 11 June 2008 by Perth District Court and is due for release from prison on 22 May 2014.
5. The Dangerous Sexual Offender Review Committee (DSORC) was established to facilitate the implementation of the procedures under the Dangerous Sexual Offenders Act 2006 (the Act) and to consider and refer eligible prisoners to the Office of the Director of Public Prosecutions (ODPP) for consideration under the Act.
6. Prisoners eligible to be reviewed are considered by the DSORC approximately nine to 12 months ahead of their release date.
7. All prisoners who meet the Attorney General criteria which is:
a) Sex offenders with a 2 year or greater finite sentence (non parole) will be considered by the DSORC
b) Sex offenders with a 2 year or greater effective sentence will be considered by the DSORC
have a 'Dangerous Sexual Offender liable' flag displayed on the prison database (TOMS).
8. As the Respondent meets the above criteria he is eligible to be reviewed by the DSORC.
9. The Respondent's 'Dangerous Sexual Offender liable' flag was placed on the database on 21 March 2012.
10. Due to a technical error, this flag did not migrate to the specific Dangerous Sexual Offender module within the TOMS database. This module is used to identify prisoners who need to be reviewed by the DSORC.
11. As such, the Respondent was not listed at the DSORC as per the usual process, approximately 12 months in advance of his release date resulting in a delay in referring this to the ODPP.
3 I infer that the respondent has not been considered at all by the DSORC. Mr Hosie only became aware of the respondent on Monday, 5 May 2014 and the application was filed the following Friday.
4 The so-called 'technical error' may explain why the evidence to support the application is deficient but I can only deal with the application on the evidence adduced by the DPP.
5 The DPP is precluded from filing an application unless there is a possibility that the respondent might be released from custody within the period of six months after the application is made: DSO Act s 8(3). So despite the error the application is within time.
6 Because I was on circuit in the week commencing 12 May 2014 the application could not be listed until Monday, 19 May 2014. No other judge was immediately available and in any event I manage the Dangerous Sexual Offenders List.
7 The application was opposed by the respondent through Ms Barone who advanced serious submissions why an order should not be made. Ms Robinson for the DPP provided written submissions and argued for an order notwithstanding that the sole basis for an order was a single conviction. Both arguments merited close consideration and I reserved my decision.
8 There is no power for a judge to make an interim detention order until an order is made under s 14. The consequence of the late filing then is that the respondent is not detained after his sentence is completed unless a subsequent order is made for a div 2 hearing.
The DSO Act s 14: What is required
9 At a preliminary hearing if the court is satisfied that there are reasonable grounds for believing that the court might under s 7(1) find the offender is a serious danger to the community a date must be fixed for the hearing of an application for a div 2 order: DSO Act s 14(2).
10 An order should be made if there are reasonable grounds for belief that a court might find the respondent is a serious danger to the community. 'Reasonable grounds for belief' are words of general application. They most commonly arise in three situations.
11 One is the state of mind of an official who is then empowered to act. Examples are the power to arrest and the power to issue warrants.
12 Next is the state of mind of an accused person who is then permitted to respond to action against them in a manner which will relieve criminal responsibility.
13 The third is a general state of mind before a person must act or decline to act, such as a company director's state of mind as to the accounts of the company.
14 The context where the expression is found is important. Here the context is not a supervisory function of a court in respect of an administrative act, or the ascertainment of criminal responsibility. The decision to declare that a person is a dangerous sexual offender is exercised by a judge who may be presumed to be knowledgeable as to the law and the workings of the DSO Act. It is a check on the power of the executive in the same way that Burchett J acknowledged in Parker v Churchill (1985) 9 FCR 316:
The duty, which the Justice of the Peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.
15 The decision a judge makes on a preliminary hearing is the first step in a process which might lead to the indefinite detention of a citizen following the conclusion of a sentence of imprisonment on the grounds that they are an unacceptable risk to the community.
16 A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. 'Might' is an unusual word to use in the circumstances, being the past tense of 'may', yet describing an event that could occur in the future, not the past. 'May' means a possibility.
17 It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative, power and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made. At a preliminary hearing a judge must have a belief in the possibility the later court will be satisfied to a high degree of probability that a person is a serious danger to the community. It is a threshold that must be crossed before a judge can appoint psychiatrists to undertake an evaluation.
18 The phrase 'Reasonable grounds of belief' has been the subject of judicial interpretation. In George v Rockett (1990) 170 CLR 104:
When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
19 Further on:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
20 The principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.
The respondent
21 The respondent was born on 18 April 1988 and is now aged 26. His first language is Manjiljarra. He lived most of his life in the Jigalong Community and went through the Law around Christmas 2000. By the age of 20 he had accumulated a considerable record in the Children's Court. The respondent's record includes mainly traffic and burglary offences. There are no sexual offences although one offence may be significant.
22 On 12 February 2002, when he was 14, the respondent was convicted of maiming an animal. The respondent and two other youths were at Jigalong when they came across two small dogs and took turns at kicking the dogs, picking them up and throwing them on the ground with force. One dog was killed by the constant barrage of kicks. The torture type injuries to the other dog were not caused by the respondent. The respondent's explanation was that the other boys got him mad.
23 Although cruelty to animals may be an indicator towards sexual offending, the circumstances of this offence are too ambiguous as regards the respondent's motivation for any conclusion to be drawn.
The serious sexual offence
24 In 2008 the respondent pleaded guilty to a series of non-sexual offences in the District Court and one count of sexual penetration of a child under the age of 13.
25 The facts were summarised by the sentencing judge:
At the time of that offence on 22 May 2007, you had just turned 19. Your victim was a little girl who had only just turned five. It isn't clear whether you met that child before, but on the day she and two other small children were playing near her house in Jigalong and somehow you lured her into a vacant house about 40 metres away. You took her knickers off and anally penetrated her with your penis for an unknown time.
When the little girl was next seen, she was running home crying, she had no knickers on, and there was blood and faeces on her legs. She was flown to Princess Margaret Hospital where she was examined under a general anaesthetic and found to have five fresh lacerations to her outside anal area, each about a centimetre in length. She suffered severe anal trauma and also blood loss, and I can only imagine how painful and frightening that assault must have been to a little girl who was just five, and all alone in an empty house (ts 11/6/08, page 2).
26 The respondent was sentenced to a total term of 7 years' imprisonment on 11 June 2008 to commence from 22 May 2007.
27 The judge placed less emphasis on general deterrence but, 'see the need to impose a term which stops you from offending in this way again as being very important' (ts 44). In other words the sentence was designed to be of sufficient severity to deter the respondent personally for repeating the conduct.
28 The respondent appealed against that sentence: Samson v The State of Western Australia [2011] WASCA 173 but his appeal was dismissed. Although being made eligible for parole, the respondent was not granted parole by the Prisoner's Review Board.
The respondent's mental condition
29 The judge described the respondent:
[You] are a person of deprived background and that your life has become a sad and lonely one, marred by serious illness (ts 11/6/08, page 6).
30 The respondent suffers from schizophrenia and is presently an involuntary patient in Graylands Hospital.
31 The sentencing judge was not satisfied that the respondent's mental condition itself meant that he was more likely to commit sexual offences. That finding was upheld in the Court of Appeal [13].
32 The respondent was assessed by three psychiatrists before sentence.
33 Dr Pascu made two reports. The first report dated 20 June 2007:
'Mr Samson has a history of a serious mental illness, namely paranoid schizophrenia. This is on the background of a documented history of conduct disorder, complicated by polysubstance abuse including alcohol, cannabis and solvents and limited support in the community. It appears that following Mr Samson's release from prison in February 2007 he was essentially non compliant with the psychiatric treatment and follow up in the community. This, I believe, combined with his alcohol and cannabis abuse, have contributed to his mental state deteriorating, with increasing social withdrawal, delusional thinking and auditory hallucinations (voices).
Regarding the alleged offence, it appears that this occurred on the background of Mr Samson's deteriorating mental state and concomitant substance abuse, mainly the cannabis, as he admitted to smoking it on the day that the offence allegedly occurred. Mr Samson has a reasonable understanding of the alleged offence, has a satisfactory understanding of the difference between the guilty and not guilty pleas and I believe that he is fit to stand trial. Following Mr Samson's return to custody he was recommenced on his antipsychotic medications and with ongoing treatment I believe that his mental state will continue to improve.'
34 Dr Pascu provided a second report dated 27 May 2008. Dr Pascu observed that the appellant's mental state had deteriorated since the previous interview in June 2007. She noted that the appellant denied having a mental illness and refused suggestions to restart his medications. She said that he had no insight into his illness or his need for treatment. Dr Pascu concluded by saying:
'I remain of the view that Mr Samson is suffering from a serious mental illness, namely paranoid schizophrenia. Since the cessation of his treatment in March 2008 I believe that his mental state has gradually deteriorated as during the interview he presented as psychotic and thought disordered, with no insight into his illness and no plans to re-start his medications.
...
If the court decides on a community based disposition or bail Mr Samson plans to return to Jigalong or Port Hedland. He has unrealistic plans to work, rent a house on his own and continue to abuse cannabis and alcohol because he believes that these substances made him feel alive. Given the history of non compliance with treatment, follow up and the further disinhibiting effect of his substance abuse I am of the view that in the community Mr Samson's risk of re-offending is significant'.
35 Another psychiatrist, Dr Patrick assessed the respondent. He could not find any direct link between the mental illness and the sexual offending. He did not think that alcohol or cannabis really played much of a role in sexual offending.
36 Dr Paul Skerritt provided a report dated 17 December 2007 summarised by the sentencing judge:
In that report, Dr Skerritt also diagnosed the appellant as suffering from paranoid schizophrenia. He said that it was of a severe form, starting early in life and complicated by symptoms of depression. Dr Skerritt could not establish any direct connection between the psychotic symptoms and the crime, such as being in response to delusions or hallucinations commanding the appellant to perform the act. He concluded that it was unlikely that there was any connection between the illness and the commission of the offence.
Dr Skerritt described the appellant as a 'tragic figure'. He also noted that people with schizophrenia have a morbid attraction to cannabis which in turn can worsen the illness and provoke admission to hospital, although not being directly causative of the illness. He said that it was likely that the appellant's symptoms were made worse by the appellant having ceased his medication and by the use of cannabis. Dr Skerritt concluded by saying:
'In summary we have an extremely damaged young man who nevertheless, at least at the present level of assessment, cannot demonstrate any connection between his serious mental illness and the commission of the alleged offence. In my opinion he is not eligible for an insanity defence but the devastation of his brain function from various biological, psychological and social factors could perhaps be seen as some mitigation for the offence short of a defence of insanity.'
The risk assessment includes the risk of sexual offending. The primary focus of Dr Skerritt's report is on whether the appellant was fit to plead and the availability of the defence of insanity. He makes observations relating to the causal relationship between the appellant's paranoid schizophrenia and the sexual offence in the context of considering whether the appellant's schizophrenia resulted in him having relevant psychotic symptoms at the time. Dr Skerritt was not satisfied that the appellant had such symptoms at the relevant time and therefore concluded that there was no direct connection between the appellant's schizophrenia and the commission of the sexual offence. However, for the purposes of this appeal I will assume that the appellant's mental condition made a causal contribution to his offending in the extended sense explained by Wheeler J in Krijestorac [18]. There can be no doubt that his mental condition together with his refusal to take antipsychotic medication and substance abuse puts him at significant risk of reoffending [10].
38 This may be contrasted with:
I am not persuaded the sentencing judge made any error in the weight she gave to personal deterrence. The sentencing judge was not satisfied that the appellant's mental condition itself meant he was more likely to commit sexual offences. That is consistent with the expert evidence and not challenged. The sentencing judge continued:
'At the time the police interviewed you, you were off your medication but you certainly knew then that this offence was very wrong and you were very ashamed of what you had done (ts 6)' [13].
39 Hall J considered that the mental illness increased the risk of re-offending [62].
Treatment programmes
40 While serving his sentence the respondent was considered for several programmes to assist in his treatment and rehabilitation.
Sexual Offender Intellectual Disabilities Programme
41 Although initially accepted for this programme, he was removed shortly after it began.
Reasons for removal from program
Prior to the commencement of the program, Mr Samson had been placed in the Crisis Care Unit (CCU) after reporting auditory hallucinations. During this placement, he indicated to medical staff he was keen to return to his general living unit so he could commence the program. Mr Samson attended the first session of the program, however in the days following the program, was observed by prison staff as exhibiting behaviour necessitating his return to the CCU. Due to this placement, Mr Samson was unable to attend, missing two program sessions.
Facilitators spoke with Mr Samson on December 1st and were informed of his decision to withdraw from the program.
Program participation
Mr Samson presented as an engaged participant during the one program session he attended.
Treatment
As Mr Samson was unable to complete the program, outstanding treatment needs remain in relation to social-affective functioning (interpersonal social skills), self-management (emotional identification and regulation) and consequential thinking. Due to his reluctance to discuss his offending and issues related to sexuality, his treatment needs related to sexual interests and distorted attitudes remain unclear.
Legal and Social Awareness Programme
42 The respondent was assessed for this programme designed for participants with cognitive function which impedes participation in other programmes:
Reasons for removal from program
Mr Samson presented as an enthusiastic and engaged participant, attending 13 of the possible 18 sessions before his removal from the program. Mr Samson was unable to attend program sessions scheduled for October 12th, 15th, and 19th as the result of incidents occurring in the unit. These events, necessitating alternative placements within the prison, resulted in movement restrictions leaving him unable to attend group.
Mr Samson was removed from the current program on October 22nd 2010, following a security report indicating potential risk between Mr Samson and another participant. Mr Samson had recently been assaulted (TOMS incident report I1181640) and was still suffering from injuries sustained in the assault, it was determined by facilitators, in consultation with prison and security staff, this risk was best managed by terminating Mr Samson from the program. Mr Samson is scheduled to participate in an offence specific program (Sex Offending Intellectual Disability - SOID) thus removal from the current program will to allow him time to recover prior to commencing the SOID program. When advised of this decision by program facilitators, Mr Samson was accepting of the decision.
Program participation
Mr Samson generally presented as an enthusiastic and engaged participant. During some program sessions, he appeared to struggle with maintaining concentration, requiring frequent breaks or branching off into unrelated topics. On these occasions, he responded well to feedback from facilitators and was easily encouraged to attend to the activity of topic at hand. He impressed as able to demonstrate an understanding of concepts and content introduced during the program through his contributions to discussions. Despite initially expressing concerns he may be unable to articulate his thoughts in English, Mr Samson was able to provide clear examples to illustrate his ideas, often assisting other participants to express their thoughts.
During the sessions he attended, Mr Samson was able to identify his high risk situations (substance use; making bad decisions; attitudes; feeling 'crook', depressed or scared). He was able to identify basic strategies he can use to assist him in managing these situations including differentiating between negative and positive self talk and identifying 'trouble' thinking.
Mr Samson was able to demonstrate a clear understanding of rules and laws, recognising purpose, function and how they assist in guiding behaviour. During discussions on formal, informal and Indigenous laws and rules, Mr Samson was able to provide clear examples of how they were beneficial to society. In addition to the above, Mr Samson participated well in sessions addressing perspective taking, identifying both direct and indirect consequences to victims. He was able to apply these perspective taking skills across a number of scenarios used to illustrate attitudes and to demonstrate an ABC (antecedents/beliefs/consequences) model of behaviour.
As Mr Samson was unable to complete the program, outstanding treatment needs remain in relation to interpersonal social skills, consequential thinking and emotional identification and regulation. It is noted Mr Samson is scheduled to participate in an offence specific treatment intervention (SOID) where he will have an opportunity to address these needs.
43 In a report dated 29 May 2013 the Cancellation Summary was:
Information on Mr Samson indicates he suffers from a long-standing mental health condition: Legal and Social Awareness Program Non Completion Report November 2010; AIPR Booking Cancellation Request for his participation in the Sex Offending Intellectual Disability program January 2009; Program Non Completion Report for the Sex Offending Intellectual Disability Program December 2010.
Mental Health staff at Casurina Prison were asked by facilitators about his capacity to attend a program in April 2013 and they responded that he was experiencing mental health issues that would preclude him from attendance in a program. It is noted that he is currently in the Crisis Care Unit. It is concluded that Mr Samson does not have the ability to be a participant in this program, which will commence within two weeks.
Behaviour in prison
44 The Parole Review Checklist reveals that between 13.08.2010 and 15.07.2011, Mr Samson was found guilty of three charges for assaulting another prisoner. The Parole Review Checklist further revealed that predominately due to his mental health issues, Mr Samson has incurred numerous incidents during his current period of incarceration including destruction of cell/property and setting a cell alight.
45 A summary from TOMS indicates the respondent is considered to be a management problem due to the conflict he causes amongst other prisoners which is as a result of the unsatisfactory state of his cell and personal hygiene. He remains unemployed and due to his mental health, the likelihood of him obtaining employment in the future is minimal.
Are there reasonable grounds for believing that the court might under s 7 find that the offender is a serious danger to the community?
One offence
46 The DPP's application is based entirely on the seriousness of the one sexual offence. There can be no doubt that it is extremely serious. The DPP concedes that there is no pattern of sexual offending and no propensity to offend. The DPP also accepts that while the offending committed is at the highest end of the scale of seriousness it is arguably as not as serious as the offending in P (judgment suppressed) although both the offending in P and the respondent's offending involve acts which are at the highest end of seriousness.
47 In P I noted it is an unusual case where an order for a div 2 hearing might be made following the commission of only one offence. At the subsequent div 2 hearing P was ordered to be detained in custody for care, control or treatment.
Static 99
48 The DPP submits:
The Respondent's Static 99 score of 6 places him in the high risk category of re-offending, as noted in the Program Non-Completion Report dated 10 December 2010.
49 In a report dated 10 December 2010 two Senior Programmes Officers dealing with the programme non-completion report for the Sex Offender Intellectual Disabilities Programme state:
Risk of Re-offence
The Static 99 is an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders, and developed on offenders in Canada and the United Kingdom. Some caution needs to be exercised as this test has not been developed or normed on an Indigenous population.
Mr Samson's Static 99 score of 6 places him in the High risk category. Based on a sample of sex offenders from Canada and the UK upon which the Static 99 was developed, this suggests that Mr Samson has a 4 in 10 chance of sexual reoffending within a 5 year period.
50 Their qualifications to use this risk assessment tool are unknown. The score of six is not otherwise explained. The test has not been validated for an Indigenous population of which the respondent is a part. Unless validated it is of very marginal weight, if admissible in evidence at all.
51 There has been a growth in risk assessment calculators purporting to be tools with which specialists, psychiatrists and psychologists can make more accurate predictions of risk. This growth may be in response to legislation similar to the DSO Act in many countries. The efficacy of some of these tools remains controversial. Static 99 is now one of the older tools. It has many limitations as explained in other cases. For present purposes however, it is not a valid test for Indigenous males of the same cohort as the respondent. Until validated, its use, if any, must be limited to members of the cohort on which it was developed. There is simply no evidence to suggest whether the Static 99 result has any efficacy whatsoever in relation to Australian Aboriginal men. If the Static 99 score is accepted as valid (and it is not) it suggests that the respondent has a 60% chance of not re-offending within a five year period. This is simply the reverse of the statement quoted earlier.
The relevance of personal deterrence
52 The sentence of 7 years included an element of personal deterrence:
And I'm certainly not losing sight of the need to bring home to you, personally, in the clearest way that what you did was so very wrong that you deserve to be punished by a lengthy jail term. And also to bring home to you that being ill doesn't give you an excuse when you ignore what the doctors tell you and when you voluntarily drink and take drugs. You made your illness worse yourself. You did that by making those decisions.
Protection of our children is a paramount consideration here, and I therefore see the need to impose a term which stops you from offending in this way again, as being very important (ts 7).
53 On appeal McLure P explained further:
The sentencing objective of personal deterrence is directly linked with the risk of an offender committing further offences. If there is no risk of reoffending, no weight is given to personal deterrence. Where immediate imprisonment is the only appropriate sentencing option, the need for personal deterrence ordinarily results in a longer term. In that way the risk of reoffending is eliminated for the period spent in custody and (hopefully) reduced upon release. Any moderation in the weight given to personal deterrence because of mental impairment can only potentially apply to the risk of future offending in the post custodial period. On the other hand, if there is a significant risk of future offending, any moderation in the weight given to personal deterrence may in appropriate circumstances be offset by considerations relating to the protection of the public. [12]
54 The respondent already has a risk mitigation strategy applied to him in the form of a sentence designed, in part, to be of such severity as to bring home to the respondent, who was found to be remorseful, the dire consequences of further offending.
What is meant by an unacceptable risk
55 What is meant by an unacceptable risk was considered by Wheeler JA in DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] - [65]. A judge is required to consider the likelihood of the person offending and the type of offence likely to be committed when considering whether the risk is so unacceptable that the interests of the community require the person to be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past. That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.
56 In DPP (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [27] (Steytler P and Buss JA) said that the word 'unacceptable' necessarily connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for the offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).
57 In defining 'serious danger to the community' Parliament requires judges to grapple and resolve a fluid concept whose meaning may alter according to the perspective from which risk is viewed.
58 From the perspective of a victim of a serious offence committed by a person not detained or supervised, I doubt whether any risk deemed by a judge to be acceptable would be so regarded. It would be difficult for any victim to understand the difference between acceptable and unacceptable risk when, from their perspective, no risk is acceptable. In making orders at a preliminary hearing like this, or a div 2 hearing, judges are acutely aware that the consequences of misjudging the acceptability of risk may be catastrophic for any victim.
59 The community perspective is more complex. Firstly, the vast bulk of serious sexual offenders are released back into the community either with or without the benefit of parole. They are not the subject of a dangerous sexual offender application by the DPP or any consequent order of indefinite detention or supervision.
60 Once a person has a conviction for sexual offending they pose a risk of further offending. For some the risk may never eventuate, but there are, sadly, repeat sexual offenders.
61 Offenders who have been released after sentence live among us and carry the potential for serious sexual offending. There are a range of measures to manage that potential risk including the Community Protection (Offender Reporting) Act 2004 (WA) which imposes significant obligations on offenders and has other risk management strategies to protect the community. A judge who assesses an application under the DSO Act is entitled to have regard to those conditions in determining whether a risk is unacceptable. The respondent will be subject to the Community Protection (Offender Reporting) Act.
62 Secondly, the community directly bears the significant cost of the dangerous sexual offender in custody or under supervision. In the assessment of risk generally in areas other than dangerous sexual offending, there is a matrix under which risk may be assessed and decisions made as to the magnitude of the risk compared to the cost of mitigation. Although the community through its elected representatives may have to weigh the likelihood of magnitude of risk against the cost of mitigating the risk, it is not part of the court's function. As Parliament has enacted the DSO Act, courts are entitled to make decisions on the basis that the effect of those decisions will be properly funded. I mention this aspect only to emphasise that cost is an irrelevant consideration from the court's perspective.
63 From the perspective of a potential offender, the risk of being caught seriously sexually offending will likely result in a heavy prison sentence. The principles of general and personal deterrence upon which the lengthy term is often set are incorporated specifically to reduce the risk of further offending of the same nature.
64 An order for indefinite detention for care, control or treatment as recognised in GTR has serious consequences for the detainee. He (and it always seems to be 'he') is detained not as punishment or deterrence for past offences but as a precaution against the possibility of future offending.
Control, care or treatment
65 The DSO Act s 17 provides:
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
66 There is no information as to whether the respondent would be amenable to supervision if declared a dangerous sexual offender but I note that the Prisoner's Review Board declined to release him on supervision.
67 The respondent can only be detained in custody for control, care or treatment.
68 In Attorney General (Qld) v Francis [2006] QCA 324; (2006) 1 Qd R 396 the Court of Appeal:
Section 13(5)(a), in speaking of a continuing detention order as an order 'for control, care or treatment', identifies the three purposes for which an order may be made: control of the dangerous prisoner, care for the dangerous prisoner, or treatment of the dangerous prisoner. These purposes are identified as alternatives. The phrase 'control, care or treatment' must, as a matter of ordinary language, be read disjunctively.
This disjunctive reading suggests that there may be cases where the basis for an order may be, either:
• the control of an incorrigible offender, or
• the care of an offender whose propensities endanger the offender as well as others, or
• the treatment of an offender with a view to rehabilitation.
It will often be the case that more than one of these considerations will inform the making of an order [28] - [29].
Care
69 It is clear that the respondent is in need of significant care. However care is necessary to manage his mental illness, particularly schizophrenia, and his generally deteriorating mental state. It is not appropriate to use the strictures of the DSO Act simply to provide mental health care for the respondent. That is the task of Mental Health Services. His deteriorating mental state and his increasing need for close psychiatric care, as Ms Barone suggests, might mean that he may never be able to commit a further offence or may never be fit to stand trial for any alleged offence, in which event the likely disposition would be a custody order. That may be so but it is speculation at this stage.
Treatment
70 Principally because of his deteriorating mental state, the respondent has not been able to participate in treatment programmes with a view to his rehabilitation. There is little prospect that the situation will change. His deteriorating mental state strongly indicates that he will never be able to engage in treatment programmes. Detaining him only for the purpose of treatment therefore is pointless. It would only be appropriate if there are unmet treatment needs which DCS could supply.
Control
71 Francis suggests that this power may be exercised for the control of an incorrigible offender. 'Incorrigible' means bad beyond correction or reform. With great respect that may be too limiting a criterion. A dangerous sexual offender may be ordered to be detained for control because of the unacceptable risk they may pose if released into the community, whether or not they are incorrigible.
72 In assessing risk and the need for control it is necessary to take into account the sentence imposed on the respondent, in part expressly for reasons of personal deterrence. This is a recognised principle of sentencing and can only be justified on the basis that a sentence of imprisonment, especially a severe sentence, may deter a person from committing further offending of a similar nature. The risk of further offending was a matter considered by McLure P in deciding that the sentence, with its heavy personal deterrence component, was not excessive.
Conclusion
73 The DPP's application stands or falls on the seriousness of the single offence which the respondent committed. There is no doubt, and no contrary argument by Ms Barone, that it was an offence of extreme seriousness.
74 Any decision under the DSO Act s 14 is necessarily made without the assistance of two psychiatric reports assessing the level of risk and reasons for the psychiatrist's assessment: DSO Act s 37(2).
75 The DPP has not adduced any evidence to show that a person who commits a single, albeit very serious sexual offence, is at risk of re-offending sexually in the future. The judge found:
I'm not satisfied that it's likely your mental illness caused or was connected to your committing this offence. I am satisfied you're a deprived person and an unwell person. I should add, that just as I'm not satisfied that your mental illness caused you to commit this offence, nor am I satisfied that you're suffering that same illness makes it more likely that you will generally commit sexual offences. At the time the police interviewed you, you were off your medication but you certainly knew then that this offence was very wrong and you were very ashamed of what you'd done (ts 6).
76 The judge considered risk saying:
The fact that you could do it at all, to such a young child, obviously causes me to be concerned about the risk you present to the community in the future.
The difficulties the psychiatrists have had in communicating with you make it difficult for me to assess the likelihood of your committing another sexual offence such as this one, but the facts of the offence itself leave me with that concern. In any event, I think I can say, with confidence, based on your lengthy record and the psychiatric reports, that if you go off your medicine when you're out of prison you are highly likely to commit offences of some type, such as burglaries or stealings or other anti-social behaviour (ts 6).
77 I am not persuaded that there are reasonable grounds for believing that the court might under s 7(1) find that the respondent is a serious danger to the community. My reasons in summary are:
• there is no evidence that the respondent is more likely to commit another sexual offence simply because he has committed one sexual offence;
• there is no evidence indicating that the respondent has a propensity to commit serious sexual offences in the future;
• there is no evidence that the respondent has any pattern of sexually offending behaviour.
• there is no evidence that as a result of his mental illness the respondent is at risk of committing further serious sexual offences;
• the respondent was sentenced to and has served a term of imprisonment encompassing personal deterrence;
• the respondent is not in need of care as that term is understood under the DSO Act;
• there is no reason to detain the respondent for treatment because the respondent is unable to participate in a treatment programme;
• on the available evidence there are no reasonable grounds for believing that the respondent must be detained for the purposes of control, the evidence being insufficient to establish reasonable grounds for such a belief.
78 In consequence, there is no evidence to establish reasonable grounds for believing that a dangerous sexual offender declaration might be made. The application is dismissed.
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